Written Submission to the House Judiciary Committee on ADA Notification

Submitted to the House Judiciary Subcommittee on the Constitution for a hearing "Examining Legislation to Promote the Effective Enforcement of the ADA’s Public Accommodation Provisions”

May 19th, 2016

FOR THE RECORD

Policy Statement of the National Council on DisabilityRegarding Amending the ADA to Require Notice

The National Council on Disability (NCD) offers this testimony for the written record in accordance with our mission as an independent federal agency tasked with making recommendations to the President and Congress on policy matters affecting the lives of Americans with disabilities. Given this mission, NCD is responsible for providing advice regarding the implementation and enforcement of the Americans with Disabilities Act (ADA) – a law with which NCD has an inextricably connected history.

NCD first proposed the concept of the ADA in 1986. Congress relied on and acknowledged the influence of NCD, its reports, and its testimony throughout the legislative process leading up to its passage and in 1990, the ADA was signed into law by President George H.W. Bush. Since passage of the ADA, NCD has remained actively involved in disability policy, including working with Congress to amend the ADA in 2008, recalibrating it to address discrimination in a broad array of circumstances after interpretation of the law was narrowed by the federal courts.

The proposed policies before the Committee at today’s hearing, “Examining Legislation to Promote the Effective Enforcement of the ADA’s Public Accommodation” all fall under the general rubric of ADA notification bills, which have come before this committee year after year. In 2012, NCD submitted a Statement for the Record to this Committee expressing concern regarding legislation that proposed “…to amend the ADA to require that an individual alleging a business is inaccessible provide written notice to the business about the specific ADA violation before bringing suit.”[1] Additionally, NCD reminded the Committee that:

Title III of the ADA was intended to balance the interests of small businesses along with the accessibility concerns of people with disabilities. It is a myth that the ADA’s requirements are too hard on small businesses .The legislative history of the ADA is rife with concern about the burden on small businesses and as a result, Title III does not require any action with respect to existing buildings that would cause an undue burden or that is not readily achievable. The approach of the ADA was not to exempt small businesses from the requirements of the bill, but rather to tailor the requirements of the Act to take into account the needs and resources of small businesses– to require what is reasonable and not to impose obligations that are unrealistic or debilitating to businesses.[2]

Since NCD issued this statement, businesses small and large--and the state and federal agencies that regulate them--have had four more years (nearly 26 total years now) to ensure compliance with the reasonable and balanced requirements of the ADA, and yet legislation that seeks to place the onus on the person with a disability who is prevented from spending their money to purchase goods and services from an inaccessible business is again under consideration by this Committee. Furthermore, among the current slate of bills, H.R. 3765 not only requires that the aggrieved person with a disability notify the owner-operator of the allegedly inaccessible business about their violation of the ADA, but also subjects the complainant to criminal liability if the notice does not meet strict statutory requirements. This proposed provision would be unique in civil rights law, and would have a chilling effect on anyone aware of this provision. Ironically, an innocent person with a disability who simply wanted to make a business owner aware of a violation of a well-settled 26-year old law might unwittingly violate this new notice requirement and face a stiff penalty while a business owner is free to flout the access requirements of the ADA. This sort of imbalance is certainly not in keeping with original Congressional intent which already took all parties’ interests into consideration against the backdrop of an individual’s inalienable civil rights.

While we all support small businesses and appreciate the valuable role they play in our economy, opening a business necessarily entails adherence to certain rules. For over 50 years, federal law prohibits businesses from engaging in discrimination based on race, religion, or sex, and for 26 years, they have been required to make their businesses accessible to people with disabilities. These requirements are widely known and ascertainable by any responsible business owner. Shifting the responsibility to aggrieved individuals with disabilities who may already have suffered the indignity of discrimination is bad national policy, and it is an unacceptable and unprecedented rollback of the “…guarantee [of] fair and just access to the fruits of American life which we all must be able to enjoy…” that George H.W. Bush recognized the ADA to be when he signed this landmark legislation. At the signing, President Bush declared eloquently, “[W]e rejoice as this barrier falls for claiming together we will not accept, we will not excuse, we will not tolerate discrimination in America.”[3]

26 years later, surely we cannot be ready to declare that equality is a failed experiment and that discrimination against people with disabilities is tolerable and acceptable in America, and that those that have been treated unfairly must stay silent or risk criminal penalties for a less than artful protest of their mistreatment.

As we did four years ago when this Committee considered similar legislation, NCD recommends that Congress follow its own careful considerations when enacting the ADA and reject these unnecessary amendments.

[1] National Council on Disability, NCD Statement for the Record – House Judiciary Subcommittee on the Constitution Hearing on “Access (ADA Compliance for Customer Entry to Stores and Services) Act” June 27, 2012. Available from: www.ncd.gov/newsroom/Testimony.06272012